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Ethical Representation in Mediation: A Guide for Parents and Children

This guide by Amy Lacy provides essential information on ethics in representing parents and children in mediation. Covering pre-mediation steps, representation during, and post-session follow-ups, it offers practical tips and responsibilities for attorneys. Topics include communication with clients, preparation, interpreting services, and handling client behavior. Emphasizing the importance of realistic expectations and professionalism, the guide also addresses the role of Ad Litems and child advocates. A must-read for attorneys involved in mediation cases.

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Ethical Representation in Mediation: A Guide for Parents and Children

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  1. MEDIATION IN DFPS CASES: ETHICS IN REPRESENTATION OF PARENTS/CHILDREN IN MEDIATION BY AMY LACY

  2. MEDIATION • DEFINITION – A private process in which an impartial person, a mediator, encourages and facilitates communication between parties to a conflict and strives to promote reconciliation, settlement, or understanding. A mediator shall not render a decision on the issues in dispute. The primary responsibility for the resolution of a dispute rests with the parties.

  3. SOME BASICS • -Mediation is a private process • -Mediation is informal (no court reporters, no recordings, no service) • -Mediation is confidential to the extent provided by law (See e.g. Sections 154.053 and 154.073 Texas Civil Practice and Remedies Code.)

  4. REPRESENTING YOUR CLIENT - STAGES • WHAT TO DO BEFORE MEDIATION • WHAT TO DO DURING MEDIATION • WHAT TO DO AFTER MEDIATION

  5. ATTY FOR PARENTS –BEFORE MEDIATION • BE FLEXIBLE W/ SCHEDULING • TALK TO YOUR CLIENT BEFORE MEDIATION TFC 107.0131(G) -Explain process, who/what/where/when/why -what is mediation? who is the mediator? -What is an Mediated Settlement Agreement (MSA) - CLIENT IN JAIL – GO SEE THEM, WRITE TO THEM

  6. ATTY FOR PARENTS – BEFORE MEDIATION • GIVE YOUR CLIENT NOTICE – THEY NEED TO BE PRESENT – IF THEY ARE OUT OF STATE, PARTICIPATE BY PHONE / Facetime – YOUR RESPONSIBILITY TO GIVE PARENTS NOTICE

  7. ATTY FOR PARENTS – BEFORE MEDIATION • BE PREPARED -TALK TO THE AD LITEM –WHAT IS HIS/HER POSITION? HAS IT CHANGED? -TALK TO THE CASEWORKER/CHILD ADVOCATES – HAVE THEY TALKED TO YOUR CLIENT? ANY UPDATES RE SERVICES?

  8. ATTY FOR PARENTS – BEFORE MEDIATION • REQUEST AN INTERPRETER – WEEKS BEFORE THE MEDIATION. • BE PREPARED -Be involved. -Give suggestions to Mediator -PLAN A, B, C, STAIRSTEP TIMELINE

  9. ATTY FOR PARENTS – BEFORE MEDIAITON • IF CLIENT WILL BE A NO SHOW, TELL EVERYONE AHEAD OF TIME • PLACEMENT INFORMATION • -GET INFORMATION OF POSSIBLE RELATIVE / FICTIVE KIN (DOB, DL, SSN, DOB OF ALL ADULTS) AND GIVE IT TO CPS SO THEY CAN DO BACKGROUND CHECK PRIOR TO MEDIATION • INDIAN CHILD WELFARE ACT – ATTORNEYS FOR PARENTS, ASK YOUR CLIENT IF THEY HAVE INDIAN BLOOD, MEMBER OF A TRIBE?

  10. ATTY FOR PARENTS – BEFORE MEDIATION • DISCOVERY – • SERVE DISCOVERY • READ DISCOVERY RESPONSES - WHAT DOES IT SAY ABOUT YOUR CLIENT? • CHECK YOUR / CPS’ LIVE PLEADINGS • CHECK FOR PARENT’S DRUG RESULTS • ARE THERE NO-SHOWS? • ARE THE LEVELS DECLINING?

  11. ATTY FOR PARENTS – BEFORE MEDIATION MEDIATE IN GOOD FAITH -REALISTIC EXPECTATIONS -TERMINATION, C IS RETURNED HOME, PMC AGENCY CLIENT CONTROL - EXPLAIN WHAT IS APPROPRIATE BEHAVIOR (No cussing /No violence/No shouting)

  12. ATTY FOR PARENTS – BEFORE MEDIATION DO NOT INVITE A BUNCH OF NON-PARTIES TO MEDIATION – IT’S NOT A PARTY! -PARAMOURS/FAMILY MEMBERS/LIFE COACH/AA SPONSORS

  13. ATTY FOR PARENTS – DURING MEDIATION • BE ON TIME, LET SOMEONE KNOW YOUR ETA • MAKE SURE YOUR CLIENT KNOWS THE LOCATION OF THE MEDIATION -No it’s not at Murworth! -No it’s not at NRG Stadium! • BE THERE WITH YOUR CLIENT THE WHOLE TIME. -TRY NOT TO SCHEDULE ANOTHER MEDIATION AT SAME TIME -TRY NOT TO GO CHECK ON A CASE. “I’LL BE RIGHT BACK”

  14. ATTY FOR PARENTS – DURING MEDIATION • DON’T PHONE IT IN. • -IF YOUR CLIENT CAN MAKE IT YOU SHOULD MAKE IT. • HAS YOUR CLIENT EVEN MET YOU? • IT’S NOT THE MEDIATOR’S / ANOTHER ATTORNEY’S JOB TO EXPLAIN THINGS TO YOUR CLIENT • BE PRESENT FOR MEDIATION –DON’T CANCEL – GET A SUBSTITUTE ??

  15. ATTY FOR PARENTS – DURING MEDIATION • INFORM YOUR CLIENTS OF ALL OFFERS -EVEN THE ONES YOU THINK THEY SHOULD REJECT -REMEMBER ITS THEIR CASE • EXPLAIN THE DIFFERENCE BETWEEN JOINT SESSION AND CAUCUS • MAKE SURE YOUR CLIENT DOES NOT SAY STUFF IN JOINT SESSION THAT IS CONFIDENTIAL -IT’S NOT A THERAPY SESSION!

  16. ATTY FOR PARENTS – DURING MEDIATION RELINQUISHMENTS BY PARENTS – -AT MEDIATION / TRIAL? -HAVE FORM READY, LINE UP WITNESSES, NOTARY LIST OF WHAT YOU WANT IN MSA -EX. NOTICE OF DRUG TESTING - TO CLIENT AND ATTY -IF THERE IS AN INTERPRETER, ASK THAT LANGUAGE RE USE OF INTERPRETER BE PUT IN MSA

  17. ATTY FOR PARENTS – AFTER MEDIATION • GET THEM A COPY OF THE MSA • DO THEY NEED TO BE PRESENT FOR THE PROVE UP OF THE MSA? • WAS THERE A FOLLOW-UP THAT THE MSA REQUIRED? • -CPS WAS GOING TO DO SOMETHING • -PARENT WAS GOING TO PROVIDE SOMETHING – INSURANCE CARD FOR C, COPY OF LEASE ETC.

  18. AD LITEM FOR CHILD – BEFORE MEDIATION • BE FLEXIBLE W/ SCHEDULING • GO SEE YOUR CLIENT TFC 107.004(d) -What Does Your Client Want? -Is There A Conflict? • CHECK PLEADINGS OF CASE • CPS?, AD LITEM? PARENTS?

  19. AD LITEM FOR CHILD – BEFORE MEDIATION • TALK TO THERAPISTS BEFORE MEDIATION • REVIEW CPS’ DISCOVERY RESPONSES – -THERAPY NOTES - DRUG TESTS(GET ALL OF THEM, ESPECIALLY LATEST ONES)

  20. AD LITEM FOR CHILD – BEFORE MEDIATION • GO SEE PARENT’S HOME, IF APPROPRIATE • TELL CPS YOUR POSITION • ARE YOU ALIGNED? • REQUEST ANOTHER MEDIATION IF APPROPRIATE

  21. AD LITEM FOR CHILD – DURING MEDIATION • SHOW UP AT MEDIATION – DON’T PHONE IT IN • BE RESPECTFUL TO PARENTS • MEDIATE IN GOOD FAITH

  22. AD LITEM FOR CHILD – AFTER MEDIATION • WAS THERE ANYTHING YOU PROMISED TO DO IN THE MSA? • VISIT PARENT’S HOME • VISIT RELATIVE’S HOME

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